Improving victims' experiences of the justice system: consultation analysis

Review of Defence Statements

Section 70A of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act') places a duty on an accused person charged on indictment to lodge a 'defence statement' 14 days prior to the first diet or preliminary hearing. Lady Dorrian's Review recommended that "there should be a review of the utility of section 70A of the 1995 Act with a view to strengthening the requirement therein to lodge a meaningful defence statement." The consultation sought views on if and how this should be achieved.

Base = 69

The large majority of those who answered this question (83%) supported a review of the use of defence statements.

An error in the consultation process meant that, although respondents were asked to give reasons for their answer to this question, there was no facility for them to do so here. In answer to subsequent questions, however, several general comments were made that the existing legislation did not work in practice, with observations that:

• the lodging of defence statements rarely happened in practice
• there was insufficient time and resources provided to defence legal representatives to provide such statements
• the current legislation allowed legal representatives acting for the accused to use defence statements as a means of stalling or delaying case progress and that this should be challenged.

For all of these reasons, a review of the status quo was seen as necessary (while also protecting the accused's right to a fair trial):

"Effective case-management, and in particular reducing the need for witnesses to attend at court and take up time in trials giving evidence about matters which are not in dispute, would be enhanced by a more exacting requirement for defence statements." (Legal organisation)

Question 32: If you answered yes to the previous question, how do you think this should be progressed to address the issues identified by Lady Dorrian's Review?

In taking forward any such review, several respondents stressed it would be important to work closely with those involved across the justice system to ensure that their views and experiences were reflected:

"In order to progress the review, we would encourage strong engagement with people with lived experience of the justice system (both complainers and defendants) as well as those working with them (including legal professionals and third sector organisations), to help inform any future improvements." (Other (third sector))

Others again encouraged greater dialogue with organisations representing victims who have had experience of defence statements ahead of taking forward any changes in this regard.

Other comments included that:

• the review should be carried out in the full context of all pre-trial preparation by the court, the Crown and the defence
• a review of defence statement requirements should be part of a wider review of the operation of disclosure in criminal cases, including seeking greater clarity on the stage at which disclosure schedules should be intimated
• any review would need to consider the interaction with the timescales for the lodging of an application under section 275 of the 1995 Act currently, and how those timescales may need to be changed to support implementation of the separate proposal in the consultation in order to provide the complainer with the option of independent legal representation (this issue is discussed in more detail at Question 54 below).

One respondent suggested that more exacting requirements on the defence would only be meaningful if a similar exacting standard was applied to the Crown, i.e. that Crown submissions were timely and allowed the defence a full and proper opportunity to respond. The same respondent suggested that any changes must be flexible and not overly restrictive to make allowances for minor matters which may arise unexpectedly at trial.

An observation was made that it did not appear possible to go as far as the similar procedure in England and Wales due to procedural differences and indeed, one respondent stressed that they would not support application of the English rules on defence statements in Scotland, since they allowed for "adverse inferences" to be drawn where a defendant lodged a late statement or led a defence that was different from the statement prepared.

A common concern was that shortcomings of the current system meant that victims, in particular, often did not know what to expect in court and that the introduction of a system or framework whereby victims could access details of defence statements in advance, could form part of a trauma-informed approach to justice.

Other comments made by just one respondent each included that:

• victims should also be able to provide statements to the court
• preliminary hearing judges could be more exacting in their expectations of those appearing before them/what was expected of a compliant defence statement
• a programme of empirical research should be funded to allow the Government to understand practice in this area, before legislative or other change is considered.

Overall, it was suggested that a review of, and changes to the requirements and timescales for, the lodging of defence statements had the potential to lead to more efficient disposal of business due to better preparation and more certainty of the defence position prior to trial, reducing 'churn' of cases (and potentially providing more certainty for complainers and witnesses that a trial will proceed on a given date). Improvement in the amount of detail included in defence statements, specifically in sexual offence/consent defence cases would also be beneficial to assist efficient case management by the courts it was felt.

A small number of respondents stated explicitly that they did not feel sufficiently qualified to answer this question or had no experience on which to base a fair response.

Question 33: Are there any other matters relating to a review of defence statements that you would like to offer your views on?

There were very few additional comments made in relation to the possible review of defence statements, with the main comments again reiterating that defence statements should never be used as a tool to humiliate victims, and that access to statements for victims should be routine (to help them prepare for court).

One respondent suggested that an example of good practice might be found in Australia's defence statement legislation. Another respondent suggested that additional measures brought in should also apply to Children's Hearings proceedings which relate to offences committed by a referred child, including extending the approach to evidential matters relating to other 'non-offence' grounds for referral.

A comment was also made that there may be scope for defence statements to raise issues, other than evidential ones, which may require to be addressed in advance of trial and as part of the general case management in order to focus the real issues in dispute (e.g. the appropriateness or otherwise of remarks being made to the jury about false assumptions in rape cases).